IPBiz

Sunday, August 31, 2008

Previous posts (here and here at NewsBusters; here and here at BizzyBlog) noted "interesting" modifications to the main Wikipedia entry of Biden, who Barack Obama selected as his vice-presidential running mate this past weekend.

The first post reported that the detail of Biden's undergraduate grades (generally C's and D's, with two A's in phys ed and an F in ROTC) "strangely" disappeared between Friday and Saturday. The second ultimately noted that a section relating to Biden's involvement in the presidential campaign of 2004 had been deleted, but that its text had inexplicably been moved to before 1988. It was as if the idea that Biden had "campaigned" in 2004 was true before Barack Obama selected him, but no longer true after that.

But to get to the next example of Wiki whitewashing by Obama-Biden's busy bees -- the worst found thus far -- we need to go back 21 years to the New York Times.

Newbusters indicates wikipedia has altered entries -->

Here is what the main Wiki entry about Biden had about the 1987 speech plagiarizing as of Friday (with two relevant footnotes included), followed by what was there as of 9:00 a.m. this morning, followed by what the Wiki entry devoted solely to Biden's 1988 campaign had as of 9:00 a.m.:

Obama people have previously sikahema'd the Obama website as to statements made on the troop surge.

***

Glenn Reynolds wrote on August 25 on InstaPundit: ACE SAYS I'M WRONG TO DEFEND JOE BIDEN on the plagiarism rap, and cites this David Greenberg piece from Slate. "But the even greater sin was to borrow biographical facts from Kinnock that, although true about Kinnock, didn't apply to Biden. Unlike Kinnock, Biden wasn't the first person in his family history to attend college, as he asserted; nor were his ancestors coal miners, as he claimed when he used Kinnock's words."

Well, that's just plain lying. Perhaps someone will ask him about this.

IPBiz had observed: IPBiz notes that the "specific identifying features" of Kinnock's speech appropriated by Biden make this more than "alleged" plagiarism, but, more importantly, were not factual as to Biden (his father and grandfather were not coal miners, and people in his wife's family had gone to college). Biden did plagiarize and Biden was untruthful.

The real problem with Biden, we were told "is not the alleged sin but the obvious stupidity." Biden hadn't harmed Kinnock by his borrowing nor was Kinnock's commercial all that original itself. As one observer noted, the Kinnock commercial from which Biden took the language was itself rife with images lifted from John F. Kennedy, and even the "thousand generations" language was said to have come from George Lucas' Star Wars. Nor had Biden deceived his audience: few listeners believe that politicians write their own speeches anyway. At worst, said one expert, "Biden purloined piffle." Yet somehow Senator Biden, alone among politicians who had done the same kind of thing, became widely known as a plagiarist because he borrowed the Kinnock language.

(...)

The Biden "standard" -- to the extent that any principle emerged -- was this: do not say anything that anyone has said before, unless what you say is so colorless and unoriginal that no one will think it worth stealing. It is no surprise that our political speech has become so uninspiring, or our electorate so uninspired, under such a standard. Candidates now may be original mostly via gimmicks: a national sales tax, "three strikes" criminal legislation, the death penalty for "drug kingpins," or similar twaddle. So long as you repeat over and over again "The one hope for America is adopting my frozen-yogurt tax credit" you can be sure of avoiding plagiarism. Or candidates may adopt standard politicianspeak, using cliches so dead that everyone (or at least everyone able to remain conscious) knows they are in the public domain.

At that time Reynolds said nothing about the fact that what Biden was telling the audience about Biden (through his expropriation of the Kinnock speech) was NOT TRUE at to Biden. Biden was HARMING the AUDIENCE by lying to them.

In his piece, Reynolds also mentions the accusation of plagiarism against Stephen Oates made by Walter Stewart and Ned Feder, who had previously been active in a well-known science fraud matter. In this discussion, Reynolds wrote:

Still another, James McPherson of Princeton, said "I would say the weight of it lies toward an exoneration of Oates."

For those who don't remember, McPherson wrote the forward to the book by Tom Carhart concerning East Cavalry Field at Gettysburg, praising the originality of its thesis. Sadly, the thesis had been advanced by Walker in a book published long before Carhart's, and indeed was not original even at that time. In a world wherein opinions are often substituted for facts, McPherson's statements about Carhart's book are problematic.

displaying at least one page of a document that has multiple pages, at least one of the multiple pages, and the displayed at least one page including a first page displayed beginning at a starting point offset from a top of the document and from a top of the first page;

calculating a height of at least the first page;

calculating a row offset of the starting point of the first page;

calculating a vertical offset at the starting point of the first page, wherein the vertical offset is calculated according to a formula of the form {[(p-1)/c]h}+r, where p is equal to the number of pages in the document, c is equal to the number of columns of the document which are simultaneously displayed, h is equal to the height of at least the first page, and r is equal to the row offset of the starting point of the first page;

receiving a command indicative of a whole page-based incremental scroll request related to changing first content currently being displayed in the at least one page;

determining a whole-page increment for scrolling from first content to second content, wherein determining the whole-page increment includes calculating a vertical offset at a second starting point in the document, the vertical offset being calculated according to the formula V.sub.1.+-.(cr), where V.sub.1 is the vertical offset at the starting point of the first page; and

changing the display to display second content, by replacing the at least one page of the document with at least one other page, the display of the at least one other page beginning at the second starting point.

Friday, August 29, 2008

IAM has a post The real inventors of the term "patent troll" revealed which brings up the claim of Anne Gundelfinger to originating the term "patent troll." There's some discussion of it being a more palatable substitute for patent extortionist.

Separately, of Q. Todd, IAM has a different vision than Patently-O:

The fact that he has taken the AIPLA job, however, surely indicates that he will not be a part of any Obama administration.

Of course, if Obama loses, we won't have to worry about the divergence on Dickinson's projected future.

Allison Routman, Frank Zappa, and plagiarism

The distinction between copyright and plagiarism implied in comment #4 is correct. One can plagiarize Shakespeare but can't infringe his (non-existent) copyright. One can even falsely claim authorship of public domain works (without violating federal law), as the Supreme Court held in Dastar v. Twentieth Century Fox Film Corp. On plagiarism, wikipedia itself notes: It is not plagiarism to use well-known 'common sense' facts (e.g.: "gravity causes things to fall downwards" or "World War II ended in 1945") without acknowledging a source. For a more nuanced discussion of creative issues, see the Ninth Circuit's discussion of Frank Zappa in the Narell case, 872 F.2d 907.

In 1948, Fox acquired the copyright to produce a television series, called "Crusades in Europe," based on the book by then-General Dwight D. Eisenhower describing the Allied campaigns of World War II. In 1977, Fox failed to renew its copyright in the series. (The obligation to renew a copyright was eliminated in 1976, but it still applied for the earlier-created work.) Thus, the series fell into the public domain.

(...)

Unable to bring a copyright claim, Fox sued Dastar employing other claims, including one for trademark infringement. Specifically, Fox argued that selling the videos without attribution constitutes "reverse passing off" under the Lanham Act, the federal statute that protects trademarks.

(...)

Copyright law protects the originality and creativity of authors, but only for a limited time. After a copyright expires, Scalia explained, "the public may use the invention or work at will and without attribution." (Emphasis added.) In contrast, a trademark protects consumers against confusion when they purchase products.

Of plagiarism, Allison Routman copied fragments of three sentences from wikipedia and was expelled from "Semester at Sea." Decades earlier, Joe Biden copied pages from a law review article, got an F, but was not expelled from Syracuse Law. Shortly after Allison was expelled, Joe Biden was nominated to be Vice-President.

In a lengthy report issued in March by a team of Lehman analysts on the subject of virtualization technology (don’t ask), language and complicated graphics were lifted directly from several reports by Toni Sacconaghi of Sanford Bernstein.

You almost have to laugh. Mr. Sacconaghi is a highly rated analyst, according to Institutional Investor (the bible of analyst ratings), and his work is closely followed by clients. There was basically no way this was going to go undiscovered. Sure enough, the theft was brought to Bernstein’s attention, which immediately complained to Lehman, demanding a public apology. Lehman declined. But after conducting an investigation, it sent out one of the more groveling client letters I’ve ever read, in which it admitted the plagiarism, withdrew the research report from its Web site, and apologized both to Bernstein and its clients. And according to people involved, Lehman also fired Gordon Johnson, the analyst the firm concluded had stolen Mr. Sacconaghi’s work. His boss, however, Tim Luke, who directed the team of analysts that wrote the report — and who presumably had final responsibility for its contents — still has a job.

Samuel Kent's concerns about people wearing propellor hats

In 2002, Victoria Slind-Flor wrote in IP WorldWide: Judge Samuel Kent of the Eastern District of Texas is a bit more outspoken on the matter. A year ago he told The National Law Journal, IP Worldwide's sibling publication, that the Federal Circuit is full of "little green men who don't know Tuesday from Philadelphia." In a summary judgment hearing in a 1996 patent case, O.I. Corp. v. Tekmar Co., Kent said, "Frankly, I don't know why I'm so excited about trying to bring this [patent case] to closure. It goes to the Federal Circuit afterwards. You know, it's hard to deal with things that are ultimately resolved by people wearing propeller hats." (The propeller heads upheld him.) Judge Kent was not available to discuss his comments.

Now, one Judge Samuel Kent is in the news again. Where he may be going, concerns about people wearing propellor hats will be the least of his worries.

"It's a classic case of a false accusation that cannot be corroborated, cannot be substantiated," Kent's attorney [Dick DeGuerin] said. "All of the evidence was carefully considered first by a special panel of the Fifth Circuit judicial (council) and then by the entire judicial (council) and they could not reach a unanimous agreement on whether or not the conduct took place."

Thursday, August 28, 2008

The U.S. Patent and Trademark Office has rejected a request by Blackboard Inc. for a temporary halt in the office’s review [re-examination] of a software patent the company holds concerning course-management systems.

Wednesday, August 27, 2008

Lex Luther Vanquishes the Four Amigos of Patent Reform

The Four Amigos of patent reform, flying under the names Berman, Leahy, Lemley, and Rai, dropped by Bridgewater on August 26. The intrepid macaw, Lex Luther, was brought out to lecture. Without uttering a single screech, the macaw flapped his wings, and, one by one, the four birds of innovation doom flew away.

Among the sanctions, Taleyarkhan will no longer be designated the Arden L. Bement, Jr. Professor of Nuclear Engineering. He loses all associated rights and privileges, including the allocation of discretionary resources.

An interesting read on the downside of life in academia is the affidavit of Darla Mize. It also gets into the reporting of Nature on bubble fusion [that of Eugenie Samuel Reich, a free lance reporter who presents stories in Nature.]

In July, an investigatory committee at Purdue, though coming to no conclusions about that finding itself, determined that Dr. Taleyarkhan had later falsely claimed independent confirmation of the work. Actually, the committee said, he had been involved in supervising the follow-up experiment, which was conducted by a postdoctoral researcher in his laboratory, and in writing the resulting scientific papers.

The committee also found that a graduate student in his laboratory whom Dr. Taleyarkhan added as an author to those follow-up papers had made no substantial contributions. [ie, gratuitous co-authorship]

Dr. Taleyarkhan appealed the decision. The rejection of that appeal, by a three-member panel appointed by Dr. Woodson, the provost, was unanimous.

"This was a witch hunt. This was a foregone conclusion," Taleyarkhan said after opening a package containing documents reflecting the appeals committee's decision. He received the papers in the office of Vincent Bralts, interim head of the Department of Nuclear Engineering, who delivered them for Purdue Provost Randy Woodson.

A piece in Inside Higher Ed by Jonathan Beecher Field ends with the text:

Biden’s dishonesty matters to me in two ways. It suggests something of Biden’s character, indeed, in a realm more relevant to doing his job than was John Edwards’s philandering to his. The other reason is selfish. Now that Barack Obama has deemed a plagiarist worthy of the vice-presidency, it becomes more difficult for me to make the case in the classroom that plagiarism matters. More broadly speaking, Obama’s choice has made it harder for me, and for my colleagues across the United States, to defend the principles that form the foundation of scholarship.

Rep. Zoe Lofgren, D-Calif., told a crowd in Denver on Tuesday that it is crucial for Congress to pass legislation to update the U.S. patent system next year -- even if the measure is a scaled back version of the broad, controversial language that was in play during the 110th Congress. [HR 1908/S 1145]

Of course, with Barack Obama picking a known plagiarist as his VEEPmate, one knows exactly where the Democrats stand on intellectual property. As they say at the Harvard Business Review: plagiarize with pride!

Of —The other irony is that when faced with these situations the students either plead ignorant or plead that the negative impact on their lives is not worth the sentence. I wonder where they learn that attitude?— , one might look to Joe Biden’s defense after being caught copying several pages of a law review into a paper he did as a 1L at Syracuse Law. Unlike Allison, Joe didn’t walk the plank, and he might soon be our first plagiarist Vice-President. Or Glen Poshard, who copied someone else’s summary in his own summary at page 54 of his Ph.D. thesis, and is an “inadvertent” plagiarist university president. And then there is Laurence Tribe.

But they did not note that Biden reportedly had credited Kinnock, as The Washington Post reported at the time: "John Quinlan, a reporter for the Sioux City Journal, said his notes showed Biden said he was quoting Kinnock when he used the same passage in a speech Aug. 14.

mediamatters obliquely referred to the FALSITY of the facts in Biden's copying:

Biden did appear to drop his own family something of a notch downward on the economic and social scale to appear more like Kinnock.

Biden's father and grandfather were not coalminers, so there was nothing truthful in Biden's substituting himself into Kinnock's life story. Other members of Biden's family had gone to college, so there was nothing truthful in that aspect. One can only infer mediamatters doesn't really care about truth.

Separately, mediamatters, and the huffingtonpost, did NOT mention the plagiarism incident of Biden at Syracuse Law, wherein Biden got caught copying from a law review, and got an F on the paper. That was cut-and-dried plagiarism, but mediamatters didn't mention that.

Steve, You've got to be kidding. In the 15+ town hall meetings a saw Biden speak at in Iowa not one person asked him about the alleged plagiarism incident. I heard people ask about the Thomas hearings, bankruptcy bill,and ever imaginable topic. Why did no one ask about the incident at the Iowa State Fair in the summer of 87, because people in Iowa, about as far away (socially, etc, obviously much of the country is west of Iowa) from the belt way as you get, knew the facts about the incident.

What Iowa Hawks omits is what happened when "Frank" in New Hampshire asked Biden about the more troubling law school plagiarism incident, and Biden's initial comeback was about Biden's IQ, followed by an untrue statement about Biden's class rank in law school. One surmises that "people in Iowa" didn't know the facts OR didn't want to be insulted.

Also on the Fix is a post from another source:

During the 2006 confirmation hearings for Supreme Court Justice Samuel Alito, the Post's Dana Milbank wrote this of Biden's performance:

"Sen. Joseph R. Biden Jr., in his first 12 minutes of questioning the nominee, managed to get off only one question. Instead, during his 30-minute round of questioning, Biden spoke about his own Irish American roots, his "Grandfather Finnegan," his son's application to Princeton (he attended the University of Pennsylvania instead, Biden said), a speech the senator gave on the Princeton campus, the fact that Biden is "not a Princeton fan," and his views on the eyeglasses of Sen. Dianne Feinstein (D-Calif.)."

Ouch.

One might also ask Clarence Thomas his opinion of how Joe Biden handles hearings.

***UPDATE

On the contrasts between Biden and Palin-->

Choice of Palin Is Bold Move by McCain, With Risks: Her personal narrative as a working mother raising five children, including an infant with Down syndrome, with a husband who belongs to a union, might prove attractive to working-class voters in swing states who have been suspicious of Mr. Obama.

On the plagiarism front, it's hard to imagine either Palin force-fitting their life history to conform to that of someone else, as Joe Biden did with Neil Kinnock; they are too busy originating their own. Comparing Biden and Palin informs one of a subtle undertone on Obama v. McCain about intellectual property and about which individual is more attuned to people who invent new things, as opposed to copying old things. Forget about whether what Biden did with Kinnock was truly "plagiarism" (Biden clearly plagiarized in law school), Biden looked to someone else's life to define his own, and copied the other person's life facts, even when the copied facts didn't fit his own facts. Is this a person you want anywhere near intellectual property policy? Obama's IP policy copies from Lemley's proposals. Do you want that either? As they say at the Harvard Business Review: plagiarize with pride!

Jay Mariotti, (former) sports writer for the Chicago Sun-Times, told the Chicago Tribune he had resigned, and observed:

that it became clear while in China that sports journalism had become "entirely a Web site business. There were not many newspapers there." (...) He said he "is talking with a lot of Web sites" and added that the future of his business "sadly is not in newspapers."

The PatentHawk blog has a post concerning bad sampling in statistics, which included the text:

A recent patent reexamination analysis by lawyers is exemplary: a small sample size of biased data, rendering it rather meaningless. But the statistically-challenged authors reported the results as conclusive. Another study, on civil lawsuit settlements, suffers the same flaw. There at least the authors admit the data base as flawed, but regardless paint a brave face on tainted data. [concerning the analysis by Andrew S. Baluch and Stephen B. Maebius of Foley & Lardner.]

LBE posted a comment:

This evokes the completely bogus analysis by Professor John R. Thomas on the (allegedly high) grant rate of the first 100 published patent applications. Thomas neglected to point out that most of the first published applications had antecedent patent family members (ie, the first 100 were primarily not first filed cases). Biasing one's sample can lead to unusual results.

Tuesday, August 26, 2008

Carter G. Phillips gave a breath of life to Star Scientific by having the CAFC overturn an inequitable conduct finding against Star.[CAFC: Because the district court's judgment as to inequitable conduct was based on factual findings that we deem clearly erroneous, we reverse the judgment of unenforceability of the '649 and '401 patents. ] Careful readers of IPBiz might recall that Carter G. Phillips was co-author of the eBay brief to the Supreme Court which had the "fib" about patent grant rate [Gross error in the eBay brief to Supreme Court in MercExchange case]

The inequitable conduct charge against Star Scientific centered around a failure to disclose to the USPTO the "Burton letter." The CAFC wrote:

As part of the preparation of Williams' patent application, Delmendo was sent a letter on August 28, 1998, by scientist and Star consultant Dr. Harold Burton ("the Burton letter"). Burton wrote to relate his recent observation that Chinese tobacco products contain very low TSNA levels. The Burton letter further stated: Since China is a developing country, they are still use [sic] the old curing technology that was abandoned in the US during the sixties. It seemed to me that the probable cause for the absence of TSNA was their use of the old [radiant heat] flue-curing techniques. [Romulo Delmendo of Sughrue, Mion, Zinn, Macpeak & Seas had been engaged to prosecute the patentapplication.]

AND

Delmendo testified that although he was initially concerned about the information, he then spoke with Burton, analyzed the letter, and ultimately concluded that neither it nor its content was material to the contemplated patent application.

AND

The '018 application's draft specification adopted most of the Provisional's disclosure but deleted the statement that radiant heat curing of U.S.-grown tobacco produced "high levels of TSNA." Instead, it stated:

In flue curing processes that utilize a heat exchanger capable of providing relatively low airflow through the curing barn, I have discovered that it is possible to somewhat reduce the TSNA levels by not venting combustive exhaust gases into the curing apparatus or barn. The preferred aspects of the present invention are premised on the discovery that other parameters, as identified above (e.g., airflow), can be adjusted to ensure the prevention or reduction of at least one TSNA regardless of the ambient conditions.

'649 patent col.6 ll.22-30 (emphasis added). Delmendo testified that this new disclosure was based on his discussion of the Jennings data with Williams.

***Of legal analysis-->

We review the district court's inequitable conduct determination under a two-tier standard; we review the underlying factual determinations for clear error, but we review the ultimate decision as to inequitable conduct for an abuse of discretion. Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1364-65 (Fed. Cir. 2007).

But even if Star's explanations are not to be believed, it remained RJR's burden to prove its allegation regarding the reason for the Sughrue firm's dismissal. RJR cannot carry its burden simply because Star failed to prove a credible alternative explanation.See M. Eagles Tool Warehouse, 439 F.3d at 1341 ("When the absence of a good faith explanation is the only evidence of intent, however, that evidence alone does not constitute clear and convincing evidence warranting an inference of intent.").

The evidentiary gap-->

In reviewing the affirmative evidence, it becomes clear that RJR's evidence had a major gap—RJR failed to elicit any testimony or submit any other evidence indicating that Star knew what the Burton letter said prior to replacing the Sughrue firm, or that the letter was a reason for changing firms. RJR admitted at oral argument that it failed to even ask Williams or Star's other executives about these critical facts, and RJR failed to identify any testimony or other evidence when specifically asked by us to do so in supplemental briefing.

AND

As noted earlier, the district court may infer facts supporting an intent to deceive from indirect evidence. Cargill, 476 F.3d at 1364. But no inference can be drawn if there is no evidence, direct or indirect, that can support the inference. RJR's lack of any evidence at all on the crux of its theory, let alone clear and convincing evidence, demonstrates that it failed to carry its burden.

Monday, August 25, 2008

At about 11:30pm on Monday, August 25, googling --plagiarism and joe biden-- produces 87,500 hits, with one IPBiz post, IPBiz: More on the plagiarism of Joe Biden, showing up #8 on the first page. Famousplagiarists was #1, and wikipedia was #2 and #3.

Democratic presidential candidate Joseph R. Biden Jr., a U.S. senator from Delaware, was driven from the nomination battle after delivering, without attribution, passages from a speech by British Labor party leader Neil Kinnock. A barrage of subsidiary revelations by the press also contributed to Biden's withdrawal: a serious plagiarism incident involving Biden during his law school years; the senator's boastful exaggerations of his academic record at a New Hampshire campaign event; and the discovery of other quotations in Biden's speeches pilfered from past Democratic politicians.

The controversy became two frenzies in one when it was disclosed that the campaign of Massachusetts Gov. Michael S. Dukakis had earlier secretly distributed to several news media outlets an "attack video" juxtaposing the Biden and Kinnock speeches and revealing Biden's word theft. The Dukakis campaign at first stonewalled and denied any part in the tape's distribution, but when the truth emerged Dukakis was forced to fire his campaign manager, John Sasso, and political director, Paul Tully – the two who had orchestrated the maneuver. Dukakis himself insisted he had no prior knowledge of their actions, and though wounded, his candidacy survived the incident.

The first paragraph of the Post piece quickly summarizes the plagiarism charges against Biden. Curiously, it does not note that the "factual" aspects of the Kinnock speech appropriated by Biden, when applied to Biden, were NOT true. Probably the more troubling aspect of Biden's act wasn't the copying, it was the untruthfulness (eg, Biden's father and grandfather were NOT coal miners, and the image conveyed by Biden was completely false).

The second paragraph brings out that it was Biden's opponent, Dukakis (or agents thereof), who created the Kinnock incident.

Plagiarism can have catastrophic consequences for one's career as a student and even later on in life—and the higher one's ambition takes one, the higher the stakes. In 1987, for instance, Senator Joe Biden, who was seeking the Democratic presidential nomination, was accused of plagiarizing passages in speeches and interviews from the oratory of a British politician, Neil Kinnock. Here are some of the passages in question: (...)

IPBiz wonders whether this preface has to be re-written [?]

See alsoProfessional Board Clears Biden In Two Allegations of PlagiarismIPBiz notes that the issue, on applying for membership in a state bar, would be full disclosure of past infractions (traffic violations, etc.) and analysis of whether said infractions, disclosed, would adversely impact bar membership. Typically, a state bar would not re-adjudicate past issues that were decided by a different body. Thus, the text that Biden was cleared of allegations that he committed plagiarism in law school by a panel under the authority of the Delaware Supreme Court doesn't, on its face, sound correct. The Delaware Supreme Court would lack jurisdiction to pass judgment on an offense committed within the Syracuse Law School. A body of the Supreme Court of Delaware could say that "what happened at Syracuse did not render Biden unfit to practice law in Delaware." How they could say Biden did, or did not, plagiarize at Syracuse in the 1960's is a mystery.

Biden's plagiarisms the talk of the internet

By now, discussion of Biden's plagiarism is all over the internet. Mostly covering the obvious.

One sees things like: The allegation of plagiarism that drove Biden from the 1988presidential race. [from the Star-Tribune] IPBiz notes that the "specific identifying features" of Kinnock's speech appropriated by Biden make this more than "alleged" plagiarism, but, more importantly, were not factual as to Biden (his father and grandfather were not coal miners, and people in his wife's family had gone to college). Biden did plagiarize and Biden was untruthful.

from the AP: Biden admitted back in 1987 that he had committed plagiarism while a freshman [ie, a 1L] at Syracuse University law school and that he occasionally used other people's words in his speeches without giving credit. [AP also brings up the Mississippi matter involving Jim Biden: On the tape, Balducci says he had spoken by phone to Jim Biden, Sen. Biden's brother, "and we're gonna meet the Bidens around noon," according to the transcript.]

Obama probably sees any anxiety over plagiarisms as "so eighties". (...)How can anyone take seriously Obama as a change agent when he places one of the most senior of beltway blowhards within a heart beat of a possible, if albeit increasingly implausible presidency? When Biden first start running for the Senate in 1972, John McCain's address was Hanoi. When Barack Obama was born, Richard Nixon was on TV talking about a second term in office. When Joe Biden was born, nobody even had a TV.

From the IHT: In his [Biden's] farewell speech, he said the "exaggerated shadow" of his mistakes were overshadowing his candidacy.

Kinnock wouldn't be drawn on the controversy at the time, apart from a brief statement noting that "imitation is the sincerest form of flattery." The Labour leader's speech did him little good either: The commercial boosted his approval ratings in Britain, but he still lost the subsequent election to then-Prime Minister Margaret Thatcher.

from FrontPage: How Does He Help?, which includes the text: Unfortunately, the Biden pick is to gravitas what a forest fire is to home equity. In reality, Biden emphasizes every one of Obama’s vices while muffling his own virtues as a candidate.

While it was Pulse~LINK winning the last (but obviously not final) round of this multi-year tiff, the tables have turned once more. Tzero Technologies has just announced that the US Patent Office "issued an office action rejecting all claims of US patent number 6,970,448 asserted in a lawsuit brought by Pulse~LINK against Tzero in June 2007." This decision, coupled with a stay issued by the district court, will evidently bring the lawsuit to a close "for the foreseeable future." We're told that the legal struggles between the two are now officially over, but we're admittedly hesitant to believe it.

This looks like the first Office Action in a re-exam. For distinctions between the outcome of a first Office Action and final decision, ask PubPat and ConsumerWatchDog, who both crowed about a favorable first Office Action and went into "spin control mode" when the ultimate outcome was NOT favorable. WARF's three patents on stem cells survived. One can ask Eolas about the Director-ordered re-exam of the Eolas patent, which went no where, in spite of two negative Office Actions.

Sunday, August 24, 2008

Went to a garden party: does Joe Biden hide in your shoes?

At a garden party in Princeton on Aug. 23, LBE had an opportunity to ask around about the selection of Joe Biden for DemVeep.

The responses were gushing: great pick, lots of experience, especially about foreign policy.

What about the plagiarism? Oh, he gave many speeches where he credited that guy [Kinnock] and one time he didn't and everyone made a big deal about it.

What about the plagiarism in law school? Don't know anything about that.

After a slight discussion, the next remark was quite revealing, about how the person (talking to LBE) had been unjustly accused of plagiarism in college, and could imagine how Biden was railroaded. While not everyone may have that "memory" from college, the evaluation of Biden by other people could include the self-reference "I do cut and pasting all the time, nothing wrong with what I'm doing or what Biden did" (ie, about as ethically-challenged as eating dessert before dinner).

There is a broad spectrum of opinion on what constitutes plagiarism, and, even after finding plagiarism, about how serious a crime it is. For example, in some alternative universe, Glen Poshard would have been fired immediately for plagiarizing portions of his Ph.D. thesis. Just not in the universe of Carbondale, Illinois, a moral black hole. There are many people who do think Poshard was railroaded, but no one has yet offered a defense of page 54 of Poshard's Ph.D. thesis, likely because there isn't one.

We will see about the electoral universe of 2008, and about how many people really are offended by what Joe Biden did in the past.

Of whether or not Biden's plagiarism of Kinnock was a "single event," note the text from famousplagiarists:

Biden initially denied any wrongdoing, claiming that this was just an inadvertent lack of acknowledgement. Yet there were other instances of rhetorical borrowing from speeches made by Robert F. Kennedy and Hubert Humphrey. And the fact that Biden had given other speeches using the Kinnock passages without acknowledgment suggested that the lifting was more than just an inadvertent oversight.

"I've been using it all over," Biden said in a telephone interview. He acknowledged failing to credit Kinnock Aug. 23 but said many members of that Iowa audience had heard the same words, fully credited to the Briton, in other campaign appearances.

One comment to the mediamatters piece was:

This should be very easy to understand. If you write 3 different books, and publish them, you need to cite the source in all three of them - even if the source is exactly the same - or its plagiarism. You don't get to cite a source in 2 books, then release a third not citing the source.

A different angle on the Kinnock plagiarism concerns the FALSITY of Biden's copying of the fact-pattern of Kinnock. From FOXNews:

Obviously, presidential candidates depend heavily on the words of others (professional speech writers) for their words, but Biden probably was most hurt because the borrowed facts from British Labor Party Leader Neil Kinnock didn’t correspond to Biden’s own history: his father and grandfathers were not coalminers who worked in the mines for 12-hour shifts. Biden was also caught padding his vita.

A 1987 article in the St. Petersburg Times (reproduced on americanthinker)noted:

Biden acknowledged Kinnock’s language didn’t fit his family perfectly. His father was in used car sales, his grandfather was a mining engineer. But he had been told and "assumed" that other relatives had worked in the mines. And, "to make it clear," members of his mother’s family had, indeed, been to college…

It isn't just that Biden COPIED Kinnock, it's that the copying of Kinnock's life story didn't fit Biden's facts. As the Midas commercial used to say, "we'll make it fit."

AmericanThinker also presents text: CBS News tonight quoted an aide to Mr. Biden as saying he had been exonerated. However, an academic official said Mr. Biden had been found guilty, "threw himself on the mercy of the board" and promised not to repeat the offense. This, according to the official, persuaded the board to drop the matter and allow Mr. Biden to remain in law school. IPBiz notes, that if this is true, it may be the first time we have a "convicted" plagiarist running for Presidential office.

The tape, which was made available by C-SPAN in response to a reporter's request, showed a testy exchange in response to a question about his law school record from a man identified only as "Frank." Mr. Biden looked at his questioner and said: "I think I have a much higher I.Q. than you do."

He then went on to say that he "went to law school on a full academic scholarship - the only one in my class to have a full academic scholarship," Mr. Biden said. He also said that he "ended up in the top half" of his class and won a prize in an international moot court competition. In college, Mr. Biden said in the appearance, he was "the outstanding student in the political science department" and "graduated with three degrees from college."

IPBiz notes that, even if what Biden said were true (i.e., graduated in top half of class at Syracuse Law School and had three (undergrad) degrees from the University of Delaware), such credentials probably should not be used to assert "I think I have a much higher I.Q. than you do." In fact, what Biden said wasn't true. He graduated well-into the bottom half of his class at Syracuse Law (76th in a class of 85). Anybody who has any familiarity with law school knows how grade-conscious law students (and potential employers of law students) are. When Biden later said: "I did not graduate in the top half of my class at law school and my recollection of this was inaccurate", it was an unbelievable understatement. Law students do not have inaccurate memories of their final grade point average, or whether they were in the "top half" or "bottom half" of their class. Biden is a legend in his own mind, and an overachiever trying to compensate for less than stellar credentials.

Barack Obama selected Sen. Joe Biden of Delaware late Friday night to be his vice presidential running mate, according to a Democratic official, balancing his ticket with an older congressional veteran well-versed in foreign and defense issues.

Following Glen Poshard's escape from consequences for copying parts of his Ph.D. thesis, this selection really illustrates that plagiarism is not harmful to one's political career, with the 65 year old Biden becoming the poster child for the cut and pasters of the 21st century. One suspects that various past statements of Biden could become issues in the campaign. Smokin!

Lest we forget, Biden got in trouble in early 2007 for his remarks describing presidential candidate Barack Obama as "the first mainstream African-American who is articulate and bright and clean and a nice-looking guy." Take that, Shirley Chisholm...

Biden is from Scranton, Pa.; can he boost Obama's stature in an eastern state that now may in play in the fall election? Only if he keeps his mouth closed... Otherwise, his "exaggerations" are likely to BECOME a major distraction, as his history of foot-shooting illustrates.

Plagiarists of the world unite, you have nothing to lose, period. Biden's placement evokes the memory of Roman Hruska:

Responding to criticism that Harrold Carswell had been a mediocre judge, Hruska stated that:

"So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises, Cardozos, and Frankfurters and stuff like that there." [see wikipedia]

Now, we may have some representation for plagiarists. Sorry, Allison, you walked the plank for nothing.

**On other blogs-->

answers.yahoo: Plagiarizing one term paper is like eating candy before dinner. BIG FREAKING DEAL! [IPBiz: ask Allison about that. And what about fibbing about class rank, scholarships, etc. ?]

One bad aspect of Biden's past that resonates with Obama's present: taking the fall for plagiarism created the perception that Biden wasn't the real thing, wasn't authentic, but rather was a collection of other people's thoughts, stitched together. If one takes a close look at Obama's innovation/patent policies, one finds that they are borrowed from others, and are not particularly clever. Further, Obama's Clinton-esque tendency to blow with the wind, as on the troop-surge and off-shore drilling, doesn't match up well with someone who has a reputation for plagiarism and for "exaggeration". Telling people what they want to hear is great, up to the point they figure out that is what you are doing. All smoke and no fire won't heat anybody up.

The loss by PubPat and ConsumerWatchdog (then FTCR) in the inter partes re-exam of WARF's US Pat. 7,029,913 is seen as even more inept when viewed against the statistics of inter partes re-examination.

Andrew S. Baluch and Stephen B. Maebius of Foley point out that inter partes re-examination proceedings displayed a high 73% “kill” rate (complete elimination of all claims targeted by the requesters). Dan Ravicher and John Simpson had a 0% kill rate in the re-exam of US 7,029,913. The prior art they mustered was deemed non-enabling and the declarations they presented were conclusionary. Artie Rai is connected to PubPat. Artie Rai is presenting Barack Obama's view on patents in Colorado.

One surmises that Eli Kintisch won't be discussing this exercise in futility in Science. Nor the impending failure of PubPat's appeal of the inter partes re-exam loss.

Today on his blog, [Simpson] disclosed the names of 18 companies that were looking for grants from CIRM. Only one, Novocell, eventually received a grant, despite oft-expressed desires by some CIRM directors that California companies should receive the benefit of state financing.

Simpson noted that some rejected business applicants have complained about CIRM's review process, contending that it "is skewed towards academic science." Some CIRM directors have also questioned the approach of its scientific reviewers, saying that they may overlook worthwhile efforts that are heavily focused on bringing cures into the hospital. Simpson suggested that the companies he identified might want to get together and talk.

One notes that the declarations used in ConsumerWatchDog's failed re-exam attempt were all from academics, with these declarations going down in flames at the USPTO.

The press release contains the text: "No one else in the world comes close to the elegance of our design and the efficiency of its operation. We could not be more pleased that we have received this patent which both recognizes and protects our unique design."

The patent in question US 7,408,091, is based on a continuation of the already-existing U.S. Pat. No. 7,045,670. Claim 1 recites:

A process for selective hydrogenation, comprising: preparing a reactant stream comprising an alkyne absorbed in a liquid absorbent; contacting the reactant stream with a selective hydrogenation catalyst in the presence of a gas stream comprising hydrogen and greater than 2000 ppm carbon monoxide, at hydrogenation conditions to provide a product stream; wherein the catalyst comprises a Group VIII metal; separating the absorbent from the product stream to recover a product.

The chemistry in question occurs in a relatively expensive "non-hydrocarbon" liquid:

The non-hydrocarbon liquid absorbent may comprise, without limitation: n-methyl-2-pyrrolidone (NMP), acetone, tetrahydrofuran (THF), dimethylsulfoxide (DMSO), monomethylamine (MMA), and/or combinations thereof, and is preferably NMP. The hydrogenation may preferably be effected by passing the absorbed acetylene and/or acetylenic compounds into the inlet of a fixed bed reactor, or a series of reactors, containing the catalyst, while co-currently passing a stream of gas containing at least hydrogen into the reactor at an inlet location.

Illusion and delusion at what once was Bell Labs

Fifty years ago Bell Labs was the greatest basic research lab the world had ever seen or perhaps ever would see. Enlightened managers recruited top graduates and enforced an absolute rule: their work had to be very relevant to the phone business, or it had to be very, very good. There was no in between. Bell Labs became a national treasure, capturing 6 Nobel prizes and revolutionizing communications. But as Geoff Brumfiel observes in yesterday's Nature, relevant work continues but basic science is all but gone. The cruelest blow came in 2002 at the hands of young German physicist, Jan Hendrik Schoen. He seemed to be able to make a thin layer of organic dye molecules assemble an electric circuit that behaved like a transistor. It's still not clear how much was illusion and how much was delusion, but it wasn't real.

Nature did not mention Schon in the August 2008 piece. The Schon incident was not the "cruelest blow"; it was a manifestation of the decay already at Bell Labs wherein the managers bought into the illusion and/or delusion of Schon's work. The Beasley report tried to sugarcoat the mass delusion by absolving all co-authors, but this sweetening could not forestall the inevitable. The August 2008 Nature article did mention that there only four physicists at Bell Labs working in any kind of "basic" research.

People tried to save Sarnoff and people tried to save Bell. Fond memories of past glories are not enough. The bosses in charge want to know what you have done for them today.

Thursday, August 21, 2008

Reuters notes: U.S. firm Hillcrest Laboratories has accused Japan's Nintendo Co of infringing claims of four of its patents to make the top-selling Wii game console, filing a complaint with the ITC, and a lawsuit in D. Maryland.

The Baltimore Sun noted: [Hillcrest's] technology is licensed by companies including Universal Electronics Inc. and Logitech, which uses it to make a $150 wireless mouse that can control online video from across the room, like a laser pointer.

John Kanzius used to have trouble getting government officials interested in his experimental cancer-treatment device.

Now they seem to be eager to help him.

U.S. Rep. Phil English, of Erie, R-3rd Dist., visited Kanzius' lab Monday to promise $500,000 in federal funding for the external radio-frequency generator. The House Committee on Appropriations has approved the funds, and the House could act on it as early as September, English said.

The bill must still be approved by the full House and Senate and signed by President Bush, though English said "it's very close" to being a done deal.

"This is the kind of project the federal government should support," English said.

Five members of Hwang's team were indicted, including one scientist who worked in the laboratory of University of Pittsburgh researcher Gerald Schatten, a former collaborator with Hwang.

Hwang was charged with accepting $2 million in donations after he knowingly falsified the embryonic stem cell research by claiming his team had produced a cloned human embryo and cloned patient-specific embryonic stem cells.

It is really a simple concept. I has been known for decades that RF waves will excite molecules of different sizes depending on their size. For example, the 2500 MHz of your microwave oven is roughly the frequency that will excite water, fat and sugar molecules but will pass harmlessly through certain plastics and glass.

It only took a guy who put the use of medical nano-technology together with microwaves to invent a device that heats cancer cells and passes harmlessly through healthy cells. It was a stroke of genius.

IPBiz notes that the microwave radiation of a microwave oven causes water molecules to rotate. Kanzius claims that his radiofrequency splits water, allowing (the resultant hydrogen) to burn. The microwave oven is NOT an analogy to what Kanzius is talking about.

And calling colloidal gold "nanotechnology" does not mean that it has not been well known for years.

Palmer, 78, is a friend of Jim Rutkowski Sr., owner of Industrial Sales and Manufacturing, Inc., a Millcreek Township company that helps Kanzius build and maintain his devices.

"I had been hearing about the device for a long time, and I wanted to know more about it," said Palmer, a longtime cancer-research advocate and prostate-cancer survivor. "I'm impressed. I see something with the potential to save a lot of people."

Researchers have shown that they can target cancer cells with tiny pieces of gold and destroy the cells by using John Kanzius' external radio-frequency generator.

(...)

A scientific article about the targeting will be published today on the Web site of the Journal of Experimental Therapeutics and Oncology [JETO]. The journal's Web site is www.oldcitypublishing.com/JETO/JETO.html.

The author of the article is Steven Curley, M.D., principal investigator for the Kanzius Projectat M.D. Anderson Cancer Center in Houston

Of the article: Researchers tested pancreatic and colorectal cancer cells that easily absorb a particular antibody, cetuximab. They also used breast cancer cells that don't absorb the antibody as a control group.

Live cancer cells and the treated nanoparticles were placed in specimen dishes and allowed to incubate for 24 hours. They were then blasted with radio waves from Kanzius' device for two minutes.

The results: Nearly 100 percent of the pancreatic and colorectal cells were killed, but hardly any of the control group's cells were destroyed.

Defendant-appellee Shoe Pavilion, represented by Venable, did not fare well at the CAFC, as the judgment of CD Ca was vacated and remanded.

Of claim construction: The district court erroneously imported the Track and Roller Limitation directly recited in claims 1-3 into the generally phrased “vertically disposed, horizontally movably positionable stack divider” language of claims 4-6. The CAFC cited Intervet Am., Inc. v. Kee-Vet Labs, Inc., 887 F.2d 1050, 1053 (Fed. Cir. 1989) (“[T]his court has consistently adhered to the proposition that courts cannot alter what the patentee has chosen to claim as his invention, that limitations appearing in the specification will not be read into claims, and that interpreting what is meant by a word in a claim ‘is not to be confused with adding an extraneous limitation appearing in the specification, which is improper.’”

Additionally: We therefore disagree with the trial court’s decision to intermingle its validity and construction analyses and as a result read into claims 4-6 the Track and Roller Limitation of claims 1-3. See Phillips v. AWH Corp., 415 F.3d 1303, 1327 (Fed. Cir. 2005) (en banc) (“[W]e have limited the maxim [of construing a claim to preserve its validity] to cases in which ‘the court concludes, after applying all the available tools of claim construction, that the claim is still ambiguous.’” (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 911 (Fed. Cir. 2004))).

Also: In sum, the trial court did not construe or clarify the meaning of actual words in claims 4-6, but improperly read into them a new limitation not required by the claim language, specification, or prosecution history. Because claims 4-6 are unambiguous, contain limitations other than the disputed claim term, and are directed to a method for using an apparatus, not to its structure or assembly, it was improper for the trial court to import limitations from the apparatus and system claims into the method claims.

On damages, the CAFC also criticized CD Cal -->

The district court misapplied the standard expressed by the Supreme Court in Wine Railway, which held that under the predecessor statute to the notice provision of 35 U.S.C. § 287, a patentee who failed to mark his patented article with the appropriate patent number could only recover damages for infringement occurring after actual notice was provided the infringer. Wine Ry., 297 U.S. at 393-94. This court has applied Wine Railway in the current context of Section 287. Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1219 (Fed. Cir. 2002). The purpose of the notice requirement is to provide “protection against deception by unmarked patented articles.” Wine Ry., 297 U.S. at 398. The idea is to prevent innocent infringement. Motorola, Inc. v. United States, 729 F.2d 765, 772 (Fed. Cir. 1984).

Wine Railway provides no support for the trial court’s summary judgment on damages. The issue here is whether Shoe Pavilion is liable for damages to DSW for infringement occurring subsequent to receipt of actual notice, and Wine Railway flatly states that a patentee may indeed recover damages for infringement that continues after actual notice is provided. Wine Ry., 297 U.S. at 393-94. Without a doubt, the law offers an infringer no exception to liability for the time it takes to terminate infringing activities, no matter how expeditious and reasonable its efforts. See In re Seagate Tech., Inc., 497 F.3d 1360, 1368 (Fed. Cir. 2007) (en banc)

Obama's policies on invention, recycled from ivory tower professors unconnected to the real world, ought to make Mr. Timko nervous. The old jobs in Pennsylvania steel mills are gone, and the "would be" new jobs are going to India under Obama's policies. Mr. Timko need only ask the labor unions where they stood on S.1145.

The will.i.am song at the bottom of Obama's list is one of his speeches set to music, with various celebrities mouthing his platitudes as if they were reading scripture. Obama is already developing a reputation for being a bit narcissistic. You'd think he would avoid doing or saying anything to fuel that fire.

Of McCain's music:

McCain's list has two ABBA songs and one by Neil Diamond. Gack. My parents used to listen to ABBA on road trips. To this day, "Dancing Queen" makes me think of the backseat of the family car, ham sandwiches and kool-aid. Of course, that didn't stop me from enjoying this scene - best use of an ABBA song, ever.

At the Saddleback forum with Pastor Rick Warren on Saturday [16 Aug 08] in Orange County, the Republican presidential candidate delivered on-the-money messages and answers so effective they were "scary to me," said George Lakoff, a renowned author and UC Berkeley linguistics professor who has studied how the human brain absorbs and processes messages.

Lakoff, whose work has helped shaped numerous Democratic candidates' campaigns, said that "right through the motivational campaign theme, they were doing everything right."

By contrast, Obama was "overconfident ... and certainly not prepared" before the evangelical audience with definitive answers to clearly explain to voters his world view, values and vision, Lakoff said.

McCain was so good at Saddleback that a mini-controversy about the "cone of silence" developed. The CSM reported:

NBC’s Andrea Mitchell brought it up on Meet the Press.

“The Obama people must feel that he didn’t do quite as well as they might have wanted to in that context, because that — what they’re putting out privately is that McCain may not have been in the cone of silence and may have had some ability to overhear what the questions were to Obama.

This exchange got the McCain folks pretty upset. So upset that campaign manager Rick Davis requested a meeting with the president of NBC news stating that it is “abandoning non-partisan coverage of the presidential race.”

Judge John D. Love of the United States District Court for the Eastern District of Texas granted summary judgment dismissing a lawsuit by Randi Black, owner of a patent that teaches a method to cover a nipple. Judge Love found the patent to be invalid because it was an obvious combination of teachings from prior patents.

IPBiz notes that there are apparently some patents that ED Texas does not like.

A method of covering a nipple on a human breast, the nipple cover having a center and including a flexible material for conforming to a human breast, the method including the method steps of placing the nipple cover directly on a human breast so as to cover at least about one half and less then all of the breast, with the center of the cover proximate the nipple; the nipple cover having a first thickness proximate the center and a second thickness proximate a periphery thereof, the thickness of the nipple cover gradually tapering from the first thickness to the second thickness, wherein the method further includes the step of being the nipple cover on the breast such that the periphery of the cover blends smoothly with a curved portion of the breast while concealing a nipple shape.

***Merely fyi:

US 6,350,175 [not cited on front page of '606 patent]

A flexible material having adhesive coated over a major portion of one side, which may then be adhered to a nipple or protrusion in a manner that allows the adhesive to directly contact the nipple (or protrusion) as well as the immediately surrounding areola and skin surface. The adhesion between the fabric and the skin, from the areas surrounding the nipple to the center of the nipple itself, creates a continuous, substantially flat (or, more particularly, a continuous curve that follows the natural curve of the surrounding tissue) profile. A preferred configuration for the device of the present invention is also provided, which reduces folding and buckling of the device as applied.

The Patent Hawk blog had written on 13 Dec. 2007:

Randi Black's 7,152,606 covers a nipple cover, one that got good coverage from Eastern District of Texas Judge John Love's Markman hearing, adopting most of the language the plaintiff preferred on the crucial term "nipple cover." The defendants had argued for an unreasonably narrow construction.

Black maintained that a nipple cover should be construed as "an article for covering the nipple on a human breast, that is not supported by attached straps around the body or by a brassiere, that is smaller than a brassiere, and that does not substantially enhance the apparent size of a woman's breast."

In a case ultimately won by the defendants, Patent Hawk argued for settlement:

The case has not gone well for the defense: losing a motion to limit discovery, so as to hide profits; as well as losing a summary judgment motion attempting to invalidate the patent because of an unintentional abandonment.

If no prior art invalidation position can be developed to cover the nipple of infringement, the smart move would be to settle, but smart is rare.

Wednesday, August 20, 2008

Rock supergroup VELVET REVOLVER have agreed to hand over a fifth of all the royalties from their 2004 album CONTRABAND after learning the riff to their PRETTY LITTLE THING hit was stolen.

Voodoo Six star Tony Newton called on his publishers to fight for a deal after hearing the song for the first time and realising it was a copy of his Dirty Little Thing tune - but even he never expected the matter to be settled so quietly and quickly.He says, "When I checked it out (the song), I genuinely couldn’t believe it, because it wasn’t as if it was close… It was basically the same riff.

"I called my publishers to check whether they knew anything, which, of course, they didn’t, and then basically left it with them. I never really expected to hear any more about it and was as surprised as anyone when I heard that Universal had settled with Velvet Revolver.”

According to Newton, the settlement not only secures him a windfall; he'll also receive all future royalties from digital, live and commercial uses of the song.

Nobody recognizes plagiarism quite like the plagiarized author (as here, or in the Andersonville Civil War mess) or like someone on a mission (the Glen Poshard matter). Of course, sometimes your digital music player discovers plagiarism too; wonder if that would have worked in the Velvet Revolver matter [?] Perhaps some IT companies should take a lesson from Velvet Revolver when patent infringement comes up.

A post on MusicRadar suggests Tony Newton got a headsup from a friend; the post quotes Newton: "A couple of years back, a mate of mine in LA called me to say he'd heard what he thought was my song on the radio, and that he had been a bit shocked when he realized it was Velvet Revolver."

The CAFC noted: In this consolidated appeal, Apotex and Impax challenge the district court’s judgments of infringement against each of them. Because we find no error in the district court’s decision, we affirm.

Of the science issue: Omeprazole is a potent inhibitor of gastric acid secretion, but it is susceptible to degradation in acid-reacting and neutral media. Its stability is also affected by moisture and organic solvents. To protect omeprazole from gastric acid in the stomach, a pharmaceutical dosage can include an enteric coating that covers the drug core. Enteric coatings, however, contain acidic compounds, which can cause the omeprazole in the drug core to decompose while the dosage is in storage, resulting in discoloration and decreasing omeprazole content in the dosage over time.

There was a discussion of the pediatric extension:

In this case, however, Astra was entitled to an additional six-month period of market exclusivity (sometimes known as a period of “pediatric exclusivity”) under the Food and Drug Administration Modernization Act of 1997, Pub. L. No. 105-115, 111 Stat. 2296. A provision of that Act, codified at 21 U.S.C. § 355a, authorizes the Food and Drug Administration to make a written request to the holder of an approved new drug application (“NDA”) for the holder to perform pediatric studies.

This case brings up "effective amount":

In the first wave trial in this case, the district court construed “effective amount” to apply to both the amount of omeprazole and the amount of an ARC present in the core. The court construed “alkaline reacting compound” as (1) a pharmaceutically acceptable alkaline, or basic, substance having a pH greater than 7 that (2) stabilizes the omeprazole or other acid labile compound by (3) reacting to create a micro-pH of not less than 7 around the particles of omeprazole or other acid labile compound. Impax argues that Astra’s evidence satisfies only the first and third of those three requirements because Astra did not introduce evidence of comparative stability testing to prove the second. (...) We therefore find no clear error in the district court’s conclusion that Astra’s pH data proved the presence of an “effective amount” of an ARC in Impax’s ANDA formulation.

We therefore do not agree with the district court’s ruling that the experimental use exception served to negate the public-use bar to patentability.

The CAFC invoked Pfaff, which is an on-sale bar case:

We may nevertheless affirm the district court’s conclusion that the claims were not invalid under section 102(b) based on the court’s factual determination that the claimed formulation was not ready for patenting until after the clinical studies were completed. See Pfaff v. Wells Electronics, Inc., 525 U.S. 52, 67 (1998); Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1380 (Fed. Cir. 2005)

The CAFC got into "reduction to practice":

At trial, Impax bore the burden of demonstrating by clear and convincing evidence that the Phase III formulation had been reduced to practice before the testing began. See z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1352 (Fed. Cir. 2007). To demonstrate reduction to practice, a party must prove that the inventor (1) “constructed an embodiment or performed a process that met all the limitations” and (2) “determined that the invention would work for its intended purpose.” Id. (quoting Cooper v. Goldfarb, 154 F.3d 1321, 1327 (Fed. Cir. 1998)). “Testing is required to demonstrate reduction to practice in some instances because without such testing there cannot be sufficient certainty that the invention will work for its intended purpose.” Id. (quoting Slip Track Sys., Inc. v. Metal-Lite, Inc., 304 F.3d 1256, 1267 (Fed. Cir. 2002)).

Impax lost-->

Impax has not demonstrated that, without conducting the Phase III clinical tests, the inventors knew that the Phase III formulation would achieve the goals of long-term stability and in vivo stability such that it would be effective as a treatment for gastrointestinal disease. We therefore find no clear error in the district court’s finding on this issue.

IPBiz notes the following text concerning the possible impact of Biden's plagiarism on his possible role as VP candidate:

On the other hand, while it might be a minor political liability, I think the old "plagiarism" charges are of little substantive significance -- the idea of "plagiarism" in a context where nobody expects you to write your own words in the first place is nonsensical.

The author of the text Scott Lemieux hasn't got his arms around the totality of Biden's plagiarism problems, which date back to law school. As such his comment [WHAT IF BIDEN IS VP?] is nonsensical and based on incomplete information. Of course, the text --nobody expects you to write your own words-- fits right in with Obama's patent policies, which have been borrowed from the writings of other law professors.

And, about contexts, Lemieux ought to talk to Allison Routman of Ohio University, who was forced to "walk the plank" for "plagiarism" more minor than what Biden did.

Well, if we measured political IQ, Biden might barely show up on the scale. As Dionne notes later in the article, Biden got one degree from college, a double major. He didn’t get a full scholarship to law school; he got a partial scholarship and received grants to cover the rest. He didn’t graduate in the top half of his class, as he asserted to “Frank”, whose IQ score has been lost in the mists of time. In fact, Biden came in 76th in a class of 85, which isn’t even close.

A European patent court agrees that Kent State University and Kent Displays own the rights to a flexible liquid crystal display technology invented by professors John West and Deng-Ke Yang. [from ohio.com]

The patent in question had been challenged in litigation in ED Texas between 1996 and 2001. This case is an example of a patentee who had to fight a litigation battle AND an opposition battle. Here, the patentee won, and someone might question whether the opponents of the patent were merely acting strategically to "wear down" the patent owner.

Tuesday, August 19, 2008

We've pointed out in the past why it doesn't make much sense to treat "intellectual property" as "regular property," since it ignores some very important differences between the two. James Bessen and Michael Meurer, who wrote the recent book Patent Failure have always taken a slightly different approach. While they agree with us that the patent system tends to do more harm than good (and they've got a ton of research to back that up), they claim that the problem is that patents don't act enough like property. They say the problem is that the "fuzzy boundaries" around patents mean that there aren't clear rules or "fences" as with real property. So, their prescription is to look for ways to treat patents more like real property.

Eric Goldman points us to a recent paper by well known law professor and patent system expert Mark Lemley on why it's a good thing that patents aren't treated more like property. Lemley is mostly a patent system supporter, but (unlike some around here) he appears to recognize that the system could be improved, and seems open to evidence concerning where the patent system does more harm than good.

A ton of research? What are you smoking Mike?

How was Lemley supporting the patent system in Ending Abuse? The paper in question is an SSRN piece titled Ignoring Patents, which abstract notes:

The answer, I think, is quite simple: both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT. Ignoring patents, then, may be a "workaround" that allows the innovation system to function in the face of overbroad patent protection.

IPBiz: yes, re-inventing the wheel is a great way for innovation to function [?]

Internet Services said that Immersion had given it the right to enforce its patents, and that Immersion’s suit against Sony stepped on those enforcement rights.

Though not a typical Keker case, KVN’s Mark Lemley told the Recorder that they took it in part because it presented a novel legal question: What kind of standing does an exclusive licensee have in a patent infringement case?

Unfortunately, things have not gone well for Lemley & Co. It lost in both the California district court and the Federal Circuit, which ruled last year that Internet Services had no standing in the Sony patent case, though it left the door open for a breach of contract dispute with Immersion.

Though the case was kicked back to the district court, the Keker lawyers wanted out, partly because of a dispute with a friendly witness in the case, a porn-industry attorney named Gregory Piccionelli. The Keker lawyers cited a conflict of interest and a breakdown of the attorney-client privilege, and said it could no longer represent Internet Services. The client fought the withdrawal motion, but Keker prevailed in June.

So how does Lemley feel about having taken the case? Lemley said he has no regrets, even if the subject matter may seem less refined than the Keker firm is used to. “My view is, those sorts of patent issues are sort of interesting issues no matter who raises them,” Lemley said.

Monday, August 18, 2008

ORI does not make plagiarists walk the plank

The journal Science reports that consent forms related to the 21 "approved" stem cell lines may be defective by today's standards. Robert Streiffer is quoted: "We know how to do things better today." Lorraine Iacovitti is quoted: "I was shocked." [IPBiz inquires: as in Casablanca?] The article also notes: "It's not clear whether iPS cells will behave exactly like ES cells. And they can't be used therapeutically because the viral vectors scientists use to introduce genes could be hazardous." 321 Science 756-7.

Page 775 has an article: Scientific Misconduct: Do the punishments fit the crime, an interesting question after UVa's actions related to "Semester at Sea." Studying an 8 year period of ORI, the authors noted 106 cases of misconduct, including 10 of plagiarism. The authors noted "retraction was never required after plagiarism." The authors also noted: "acts of falsification and fabrication were punished more harshly than were acts of plagiarism."

Sunday, August 17, 2008

Earlier this year, John Coleman, the founder of The Weather Channel, stated that manmade global warming is "the greatest scam in history," adding, "I am amazed, appalled and highly offended by it. Global Warming; It is a scam." Coleman said the theory of global warming is based on fraudulent science.

"New Jersey’s tax and regulatory climate is already chasing jobs from this state left and right and these new regulations will make matters worse," Michael Doherty said. "Rather than conforming our policies to questionable scientific theories, we should be looking at the concrete economic indicators that show our state’s economy is in trouble. And we should be taking steps to help people who are losing jobs and being forced out of their homes by this state’s anti-economic growth agenda – not making matters worse."

Nutty claims pulled off the Internet aren’t transformed into truth simply because the compiler can find someone to publish them in book form.

How about

False assertions that Gary Boone invented the integrated circuit aren't transformed into truth simply because the Stanford Law Review published them.

But, of course, law reviews operate on the principle, "if it's as published, the cite check is done. Don't bother us with the truth of the matter."

**So when the editorial talked about Credible news reports, just what is credible, the Stanford Law Review?

From a previous IPBiz post: To accept a thought merely on the basis of who said it is not reason. It is idolatry. [quoting Arnold Joseph Dawkins, Jr.]

Here, Gary Boone did not invent the integrated circuit, and the inventors of the transistor always saw applications beyond hearing aids. And, no, Robert Clarke never wrote that all continuation applications led to patents. Notwithstanding what you may find in law reviews written by Barack Obama supporters.

Slashdot has an interesting thread on the [hypothetical] rights of an employee not to patent.

The set-up:

My manager woke up one morning and decided to patent some stuff I did recently. The problem is, I'm strongly opposed to software patents, believing that they are stifling innovation and dragging the technology industry down (see all the frivolous lawsuits reported here on Slashdot!). Now, my concern is: what kind of consequences could I bring on myself for refusing to support the patent process?

One commenter noted the consequences of "at will" employment. One can be fired for no reason at all. That pretty much answered the question. HOWEVER -->

one comment: First, it will depend on the state. But the simple fact is, that he developed those items FOR the company AND on company time. In just about EVERY STATE, if not ALL states, the company owns the patent (unless the author explicity excluded those BEFORE time of contract. As such, they are now asking him to submit THEIR idea to the PO. This is no different than if they ask you to take a pix of something, or back up something, or whatever. It is expected AND legal for the actions that they are asking him to do. [In passing, IPBiz notes that Utah has the most pro-employer law in the country.]

another comment: Knowingly violating a patent is treble damages, which is why they tell you never to look. [IPBiz: soooooo bogus!]

another comment was somewhat favorable to patent attorneys: and tell your boss, as well as the IP attorneys working on it within/for your company, in a paper-trail-setting medium like email, dressed up as a question of an inquisitive techno-geek wanting to satisfy his curiosity:

"So, on this flux capacitor patent thing: What do you guys make of this Heisenberg compensator design I found at this URL here? I kind of derived my design from that, is that something that would go in the prior art list we talked about during the IP attorney meeting the other day?"

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.